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This week is Sunshine Week, “a national initiative to open a dialogue about the importance of open government and freedom of information,” so it’s a great time for the National Security Archive to release its Freedom of Information Act Audit. (The National Security Archive, I’ve just learned, is located here at George Washington University, but is “an independent non-governmental research institute and library.”) 

The audit’s findings are troubling. Although President Obama issued a memorandum calling for greater disclosure in January 2009, and Attorney General Eric Holder issued FOIA guidelines two months later, most agencies haven’t improved much when it comes to FOIA requests. The Archives news release summarizes the disappointing numbers:

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reported by Mine Safety and Health News: Martin County: New Information  Released, But Information on Mine Seals Still  Redacted

A Labor Dept.’s Inspector General report on the whistle-blower complaints surrounding the 2000 Martin County Coal Co.  impoundment failure in Kentucky, verifies a change in MSHA’s  investigation after the administration of George W. Bush came into power.  In addition, the IG report shows that it  never questioned the lead investigator into the impoundment failure – Tony  Oppegard – who headed the investigation team until the day G.W. Bush was  inaugurated. 
The IG investigation was launched after Mine  Academy head Jack Spadaro claimed that Bush Administration officials were  interfering in the investigation into one of the largest environmental disasters  in the eastern U.S.    Spadaro was “second in command” on the MSHA  investigation team looking into the causes of the failure, and was head of the  team when Oppegard was absent.

The IG report shows that after the top  echelon of MSHA changed with administrations, the tone and scope of the  investigation also changed. 

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I’ve often suspected that some federal agencies apply very broad definitions to the exemptions provided under the Freedom of Information Act (FOIA).  Now, thanks to one diligent journalist I can judge for myself whether the Mine Safety and Health Administration (MSHA) is an offender. 

Ellen Smith of Mine Safety and Health News requested records from MSHA and the Solicitor’s Office (SOL) about its legal determination that the haulage road on which coal-truck drive Chad Cook, 25, died, was under MSHA jurisdication.  MSHA had made a gross error in 2005-2006 when it concluded that the road was private property.  (In November 2007, the senior officials reversed themselves, but it was too late to get justice for Chad Cook.)   Smith made her FOIA request for the legal determination in August 2008, and MSHA responded 7 months later.   They provided a four-page memo written by SOL, but redacted certain portions under FOIA Exemption 4.   This exemption is allowed to protect

“trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.”

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Of the many disturbing and damaging policies instituted during the G.W. Bush Administration, high on my list is abuse of FOIA.  It started with the post 9/11-Ashcroft memo, which was institutionalized into downstream agencies, and reconfigured and rejustified over Mr. Bush’s remaining 7 years.  In the public interests, one journalist sought to find out how the Labor Department’s FOIA practices were “evolving” under G.W. Bush’s non-disclosure philosophy. 

In March 2005, Mine Safety and Health News (MSHN) received an anonymous tip, urging the editor, Ellen Smith, to request records from a training session held for DOL FOIA officers on March 1-2, 2005.  The tipster suggested that she’d likely be very interested in what had been communicated to DOL staff and that she should specifically ask for a copy of the videotape made of the two-day session.  (Presumably, the officials who organized the FOIA training session decided to videotape the event for the benefit of employees who were not able to attend.)

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